10 Conclusion: Do Hard Cases Make Bad Law?

A political trial falls between politics and law. In politics, justice and the legal bounds of the rule of law are embarrassments to the realist. In law, the legalist cannot acknowledge public influence and the political consequences of judgments by courts.

If law and politics were thought of as two completely separate realms in our public life, political trials would not cease to exist. We might, however, deny that they exist by defining them away. The lofty pedestal of legalism encourages us to mistake the rules of law for the rule of law. We see the rules so clearly that we miss the principles on which they stand. An introduction of such issues as the rightness of policy or the representativeness of government, from this perspective, is rejected as contrary to the rules of law, as a “political defense.” The problem with this critique of political trials is that while a “political defense” is castigated, a “political prosecution” might slip past us unnoticed.

Still, unless law and politics are separate, unless a respectful distance is maintained between them, law will become an instrument of expediency. We have had enough evidence in partisan trials to see this danger. If believing that law and politics can be totally separate is an illusion, thinking that law is politics by another means imperils those very rights which in a free and democratic society are the purpose of politics. An independent judiciary keeps constitutional politics honest by holding to the rule of law.

The dilemma of a political trial is contained in the phrase law and order. The two are identical only to the legalist and the realist, who think that law is a system of rules and either all order is obtained through law or all law is a pageant for those who impose order. For others order is larger than law, because it contains a moral order, and the law is more than rules, because the principle by which we recognize rules cannot be a rule itself.² When legal and political agendas clash in a political trial, the legalist and the realist will see this conflict as a failure of the rules to clarify what conduct is required or as a refusal by certain people to obey. A political trial, from such viewpoints, represents either a blunder in which the law did not do its job or a mutiny by those who challenge the law’s authority.

A dissenter, such as a John Lilburne or a Daniel Berrigan, has a clear understanding of both law and order, an understanding which is not irresponsible. A criminal, intent on taking advantage of society, may have an irresponsible notion but not a dissenter. The D.A. prosecuting a dissenter may have as clear an understanding of both law and order as the dissenter, but it would be sharply different. The Irish nationalist might see true order for Ireland in its independence from England and view all laws which tie them together as tyranny, just as an English prosecutor would have no doubt that Irish violence disrupts civilized order and that prosecution for resistance activities is enforcement of the law. Granted, they differ, but their differences can be circumscribed by procedures of a trial.

The function of a political trial is to clarify for society the practical meaning of law and of order. What emerges will not be a logician’s delight, but it can be a workable understanding. Charles I and the Cromwellites each had a firm notion of what law and order meant for England in the seventeenth century, and John Liliburne had his. For the king, the crown was the restorer of legitimate order because it was the ancient order, and an alternative was not merely unacceptable, it was unthinkable. For the Puritans, the Parliament was the voice of the people and they, the Puritans (or the New Model Army) were the voice of God. The royalists, in Puritan eyes, were as far from true order and its law as was the Roman Catholic Church, which for the Puritans was the force of disorder and tyranny.

As the meaning emerges political trials engage and change society’s civil religion. The same functions arise for both political trials and civil religion. Both present the possibilities for exploring fundamental societal questions. Both present, on the one hand, the specter of a tightly unified society dominated by an ideological vision of history and society. Both also hold out, on the other hand, the prospect of a civic culture open to the depth of understanding when basic questions are taken seriously. While a closed civil religion and partisan trials keep society within an ideological box, the potential for an open civil religion and political trials within the rule of law provides us with a path for change as well as strengthening the bonds of identity.

Roger Williams had it right when he pointed out how the English Tudors created a nation of hypocrites. Each Tudor monarch wanted a nation unified by religion, to “England’s sinful shame:” Henry VII, all Catholic; Henry VIII, half Protestant and half Catholic; Edward VI, all Protestant; Mary, all Catholic; Elizabeth, all Protestant. Williams claimed that they were following a pattern as ancient as Nebuchadnezzar, a scheme to enforce uniformity. Williams suggests that such a tendency is an inertia of politics, the pattern we follow unless we challenge ourselves toward a society based on freedom of conscience. Nebuchadnezzar’s golden image is the temptation toward totalitarian absolutism and the attraction for the unity of a brave new world, but its consequences are the ignoring of society’s needs and the loss of freedom.

Certain trials and civil religions crystallize our public understanding of law and order.

Political trials are society’s own judicial review. How it is exercised depends upon society’s understanding of law and order, and it in turn shapes society’s understanding. In partisan trials society imposes its power for revenge, to eliminate unpopular opponents, to dominate ethnic groups, or to establish victor’s justice. If the trials are within the rule of law, society can explore the issues of responsibility, rightness of policy and dissent, representation and legitimacy. The Supreme Court can use judicial review to do the same. A political trial, like judicial review, can both reflect society and educate it. What Robert McCloskey concluded in his history of judicial review applies to political trials: “The judges have often agreed with the main current of public sentiment because they were themselves part of that current, and not because they feared to disagree with it. But the salient fact, whatever the explanation, is that the Court has seldom lagged far behind or forged far ahead of America.”³ Political trials are in the same current.

In political trials, where society can observe and be prompted to rethink basic concepts, the opposing sides take symbolic positions, and trial encloses a form of existential representation.⁴ Dennis Banks and Russell Means represent the American Indians in their struggle with the United States government and the BIA, but they also represent all Americans in an attempt to insure the rights guaranteed by the Constitution and treaties, and, further, they represent the fulfillment of human dignity which applies to all peoples.

Alasdair McIntyre observes in After Virtue: “Man is in his actions and practice, as well as in his fictions, essentially a story telling animal. He is not essentially, but becomes through history, a teller of stories that aspire to truth. But the key question for man is not about their own authorship; I can only answer the question â€?What am I to do?’ if I can answer the prior question â€?Of what story or stories do I find myself a part’”⁵ Every trial is a story, but every political trial is a story with special claims upon society. The questions it raises touch each citizen twice, once because every citizen is involved in the responsible enforcement of law to achieve justice and again because of the issues with which it challenges society as a whole. Specific events set the legal agenda of a political trial while the wider stories of those involved, both victim and defendant, determine the political agenda. Dennis Banks and Russell Means, for instance, were tried for burglary, theft, assault, and possession of firearms in the 1973 takeover of Wounded Knee, but in addition to this legal agenda both the prosecution and defense raised a political agenda that involved the issue of representation: Who can speak for the American Indians?

The political agenda contains the stories which strike home with each of us as citizens. If the legal agenda focuses on incidents which can be dated and located, the political agenda calls up analogies from the depths of our culture that are difficult to delineate. If the legal agenda depends on a rational analysis, the political agenda summons our empathy. Both sides can invoke the political agenda. The prosecution might, for example, tell the story of the victim—such as the residents of Wounded Knee, the owners of the trading post, and the priest of the Sacred Heart Catholic Church—while the defense might embrace the tale of the American Indians as victims of American history. The same dual agenda can be found in the trials of other defendants from Socrates and Jesus to the Rosenbergs and Berrigans. Their separate stories were shaped by the trials concerning specific events, but the stories reach further than the events to our common need to understand ourselves as a society with a history and an identity.

As the trial and the story of Joan of Arc demonstrate, we have difficulty knowing Joan. Three major playwrights, to take an obvious and perhaps extreme example, Shakespeare, Shaw, and Brecht, respectively, represent Joan as a “witch” and “damned sorceress,” (William Shakespeare, I Henry VI, Act III, scene 2); as “the queerest fish among the eccentric worthies of the Middle Ages,” the “first Protestant martyr,” one of the “first apostles of Nationalism, and…of Napoleonic realism in warfare,” “a pioneer of rational dressing for women,” a “born boss.” (G. B. Shaw, Saint Joan, Preface); and as a proletarian martyr (Bertolt Brecht, Saint Joan of the Stockyards). If we were to survey the biographers and historians—French, English, and ecclesiastical—we would undoubtedly find several more Joans. Naturally, the historical facts and the real Joan matter. But at the same time, the story of Joan and the myth surrounding her life and trial have an importance which extends beyond the facts. Just as the events which lead to political trials, and the trials themselves as events, are part of larger stories, so the stories participate in more universal myths. What we understand from the trials and stories shape the myths. Unlike the facts in the legal agenda, the myths are beyond proof, but they are not beyond understanding. Not only do the trials and the stories give the myths believability, but the myths, in turn, undergird the political trials and stories with universal significance. More, the trials-cum-stories-cum-myths stimulate thought about fundamental public conflicts and assist in developing our sense of identity as a public.⁶

Stories are threats to society as much as foundations for society. The abuse comes when we desire simplification and facile answers—either entertainment or ideological support. Trials can provide an escape from central questions. That is when trials provide alluring copy and when history becomes a warehouse of spectacle for Hollywood and the tabloid media. Truth becomes an illusion, and illusion is presented as truth. The danger, in other words, is that trials can be used as either profitable entertainment or as opportune ideology producing factories. Either way they substitute expediency for justice.

In his exploration of the 1987 Klaus Barbie trial Alain Finkielkraut provides an example of what he calls “the corruption of the event.” After an eight-week trial Barbie was found guilty on all four counts of crimes against humanity. Finkielkraut, who sat in on the Barbie trial from beginning to end, calls the trial, despite its verdict, a moral failure. “Taking refuge behind the facade of the folk tale,” Finkielkraut writes, “ideology thus resurfaced in the very place where it should have been called to account.” The Barbie trial, in Finkielkraut’s view, “passed from the domain of history into the sphere of entertainment.”⁷

Finkielkraut criticizes those who turned the Barbie trial into variations of folk tales. Both the prosecution and the defense are reproached: the prosecution lawyers because they featured Barbie’s crimes against the French Resistance at the expense of his crimes against the Jews and the defense lawyers because they reversed the charges, defending Barbie by diminishing the importance of the extermination of the Jews. The prosecution built its case on the folk tale that the French people had unanimously opposed the Nazis, a popular fable that fed French nationalism.⁸ The defense built its case on the folk tale that the sufferings of the Third World demand more attention than the Holocaust because the extermination of the Jews was a crime of mere local—Eurocentric— interest, an event that offends only the consciousness of whites. Finkielkraut points to the irony of the collusion of representatives of the Third World with a Nazi torturer. The title of his book reveals his theme: Remembering in Vain.

The political and legal issues that become the Gordian knots in certain trials are cut decisively, not untied. The Catonsville Nine and most of the Nuremberg Twenty-One were tried and judged guilty, while Angela Davis, John Zenger, and John Lilburne were tried and found not guilty. The verdicts may have settled the matter for the defendants and for society at the time but not definitely. In certain cases the trial is not over when the verdict is reached. The dialog on the issues may continue for centuries; the trial is not over until the story is told.

The head-on collision of values is most apparent, as I hope this book has demonstrated, in political trials within the rule of law. Yet as is equally clear, some trials in all countries and, sadly, all trials in some countries are partisan prescriptions of expediency. We learn from them, too, but they are negative examples. What happened to Socrates and Jesus at the hand of the state, to Joan of Arc and the victims of the Inquisition, to Thomas More, Alfred Dreyfus, Sacco and Vanzetti, and members of SWAPO demonstrates far more about the human spirit and the rule of law than many other trials within the rule of law. Nevertheless, from partisan trials we learn in spite, not because, of the law. To law and politics the rule of law is a moral consensus necessary for the peaceful resolution of fundamental conflicts. Its framework permits hostile encounters over the nature of public responsibility, such as in the Watergate and the Hinckley trials, over the rightness of policy and the methods of dissent, as in the trials of Lilburne or Karl Armstrong, over the nature of representation, as in the trials of nationalists, and even over the question of legitimate rule, as when regimes themselves are tried.

Normal trials follow a route similar to that which Thomas Kuhn sees normal science following: puzzle-solving and mopping-up operations.⁹ Political trials, by contrast, engage those paradigmatic myths that are prior to the rules governing normal trials. This makes political trials both more dangerous for society’s health and potentially more creative for society’s change. The legal agenda can handle normal trials, but in political trials the dual agendas—political as well as legal—raise questions which bear upon the primary stories which the rules of law clarify and modify. During crises when normal trials might break down and the paradigms blur, political trials challenge the assumptions of both law and politics. The myths that are at the core of our understanding are given new meaning when a Socrates or a John Zenger is mentioned as the representative dissenter or a Joan of Arc, Robert Emmet, or Nelson Mandela is held up to represent all nationalists.

Political trials within the rule of law provide society with the occasion to examine, and perhaps redefine, itself. Such trials do not, perhaps cannot, resolve the tensions forever. The Berrigans did not stop the draft, nor did the federal government halt anti-Vietnam war protests with the Catonsville Nine trials. The issues about the immorality of the war and the proper methods of dissent were not given a definitive answer. They were clarified, however. The trial for the occupation of Wounded Knee neither restored to the Lakota the Black Hills guaranteed by the 1868 Treaty nor reconciled AIM and its supporters to the BIA and the tribal council. The issue of who speaks for the American Indians, or even the Lakota, remains, as does the larger issue of the place of the American Indian in American society. The Wounded Knee trial did, however, bring about a better understanding of the Lakota and the issues they have raised. Political trials confront tangled issues, tied in tight knots. While a trial might not untie the knot, but only cut it, our reflection of the knot in front of us will help us to understand the next one much better. Hard cases, the adage has it, make bad law. Nevertheless, hard political cases make a better understood society.

In every criminal trial, whether for prostitution, driving while intoxicated, theft, rape, or murder, public order is at stake, as is one individual’s liberty. This tension between society and the individual is rooted in both criminal law and religion, twins at birth and throughout their growth. It is far from an accident that the Christian liturgy and courtroom ritual have so much in common: beginning with an invocation of authority, followed by the entrance of a judge or priest in a robe signifying a special office, continuing with indictments and proclamation, confessions of transgressions, the central issue of guilt, reliance on oaths and witnesses to the truth, and concluding with judgments and sanctions. It is interesting to note that the word sanction in law means punishment, but that the religious roots of the word are in that which makes life holy, which occurs in a civic sense when a judge passes sentence. Naturally and fortunately, there are crucial differences between criminal law and religion, especially in the adversary system, but criminal law cannot deny its origin in expiation.

A political trial involves these tensions and much more. Its agenda (often more latent than manifest) includes, in addition to those inherent in the criminal law, the tensions of our public identity, our myth of history, and our sense of destiny. The contradictions which arise over these issues intensify from trials of corruption, to trials of dissenters, to trials of nationalists, and finally to trials of regimes. Like Charles I, no defendant in a political trial is an ordinary prisoner. The atonement sought by the public, represented by the judge, in a political trial reaches further than in an ordinary criminal trial. The fact that Otto Kerner was a judge and former governor rather than, for instance, an accountant, made his bribe-taking a threat to the integrity of the public realm. The court, in imposing sanctions of law, restored that integrity. Likewise, the contradictions represented in the Armstrong trial involved more than arson and second-degree murder, just as those in the Banks-Means trials went far beyond theft, disorderly conduct, and illegal possession of firearms. The added agenda in these, as in all political trials, touches the fundamental dilemmas of politics: the morality of war and of violent protest, the identity of a people and who can speak in its name.

All criminal trials touch society’s fabric. Judgments about public order and individual liberty made in ordinary criminal trials involve everyone. The texture of civility in everyday life is woven from such decisions. Political trials and civil religion go beyond this warp and woof of law to the pattern in the public tapestry itself. That pattern, with all its unresolved contradictions, is the reason political trials become central moments for understanding nations and entire civilizations. The trial of Socrates is the event through which we generally approach Athens and all ancient Greece. Socrates’ “Apology” at his trial is one of the cornerstones in the tradition of enlightened thought and freedom of inquiry in the liberal tradition. The trial of Jesus is, likewise, central to Christianity, and a foundation for the strength of religious feeling. Who would write a history of France without devoting close attention to the trials of Joan, Louis XVI, and Alfred Dreyfus? Are not the trials of John Peter Zenger, John Brown, Sacco and Vanzetti, the Rosenbergs, the Chicago Seven, and the Berrigans equally important for understanding America? For an Irish nationalist, the words Robert Emmet spoke before he was sentenced to death have come to have the same meaning as the Gettysburg Address does to an American.¹⁰

“The ultimate foundation of a free society,” in the words of Justice Felix Frankfurter, “is the binding tie of cohesive sentiment.… We live by symbols.”¹¹ Political trials and civil religion can serve a free society by bringing together for public consideration the basic contradictions which arise from the clash of conflicting values and loyalties. The tensions over the relations of the private to the public realms, the rightness of police and dissent, the nature of representation, and the legitimacy of government are all present in any political system. Especially in crises, these tensions must be faced. Although the judgments in political trials do not resolve these contradictions, it is important that they be raised. Generally, if either side of the tension were to win and dominate, we would all lose. This much we have known about such fundamental contradictions at least since Aeschylus wrote his Oresteia. In the three plays of this cycle justice is found neither completely on the side of the accused Orestes nor completely on the side of the accusing Furies. Orestes was guilty of murdering his mother, and Athena knew it, but Athena also knew that the angry vengeance of the Furies would not guarantee justice. She ended the cycle of blood revenge in the House of Atreus by establishing a court of law. In short and in conclusion, political trials within the rule of law, while not resolving contradictions about the nature of society and history, do bring them into clear focus, and open the way for us to see and accept the ironies of law, politics, and history.